Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2295 (RAJ)

Union of India v. Abdul Rasheed

2005-08-30

VINEET KOTHARI, Y.R.MEENA

body2005
Judgment Dr. Vineet Kothari, J.-Union of India, has filed this writ petition challenging the order of Central Administrative Tribunal, Jaipur Bench, Jaipur (herein after referred to as The Tribunal) dated 25th July, 2000 allowing the original application No. 62 of 1996 whereby the Tribunal quashed and set aside the impugned orders dated 17.07.1992 (Annexure-A1), 30.11.1992 (Annexure-A2) and 112.1995 (Annexure-A3) and directed the petitioners-respondents to reinstate the applicant Abdul Rasheed in service while leaving the petitioner-respondents free to take decision regarding back wages as per General Financial Rules. 2. Respondent Abdul Rasheed was initially appointed on the post of Rest Giver-Plat form Porter on 01.05.1960. In the year 1962 he was designated as Sealman and in the year 1984 he was again designated as Platform Porter. Thereafter, he was designated as Pointman and Liverman. 3. According to the petitioners the said respondent Abdul Rasheed absented himself from duties w.e.f. 01.01.1985 without informing the Railway authorities the reasons for his absence and he continued to remain so absent for a period of over six years. Disciplinary action for his such voluntary absence was initiated against the said delinquent and a show cause notice in this regard in prescribed Form No. SF5 was sent to him which according to the authorities, he refused to take. However, it is submitted that he came to know about the disciplinary proceedings against him and that is why he appeared before the Enquiry Officer on 13.07.1991 and on that date, his statement was recorded which is Anneuxre-4 on record. In his statement recorded on 13.07.1991 he stated that due to his mental, physical and family circumstances, he is not willing to serve the Railways and he had already sent his application seeking voluntary retirement on 11.07.1991 by registered post (A.D.). The said respondent appears to have retracted from his statement dated 13.07.1991 vide his letter Annexure-5 dated 06.08.1991. Thereafter, again his statement came to be recorded vide Annexure-6 (undated) in which he stated that he was under the effect of "super natural forces" and, therefore, he gave his statement as aforesaid on 13.07.1991 but now he found himself fit to serve. Though, he said that he received the envelope containing Form No. SF5 but in view of his mental state, he did not accept the same and had submitted a letter for his voluntary retirement. Though, he said that he received the envelope containing Form No. SF5 but in view of his mental state, he did not accept the same and had submitted a letter for his voluntary retirement. The Enquiry Officer found the delinquent guilty and after considering the enquiry report, the Disciplinary Authority imposed the punishment of removal from service vide order Annexure-1 dated 17.07.1992. The said order was confirmed by the Appellate Authority vide Annexure-2 dated 30.11.1992 as well as the Revisional Authority vide Annexure-3 dated 112.1995. 4. Aggrieved by the said orders, respondent Abdul Rasheed approached the Tribunal in O.A. No. 62 of 1996 which came to be allowed vide impugned order dated 25.07.2000 mainly on the ground that it is not established that a memorandum of charges and statement of allegations were served upon the delinquent. Paras No. 7 and 8 of the impugned order are reproduced hereunder:- "7. In such circumstances, we are of the considered opinion that in a case where it is not established that a memorandum of charge-sheet, imputation of charges and statement of allegation were served, the enquiry conducted and punishment imposed upon such an enquiry report by the disciplinary authority is per se ab initio void and illegal and in the same way the order of the Appellate Authority as also the revisionary authority passed on such order of removal are also per se illegal and liable to be quashed. 8. We, therefore, quash the impugned orders Annexure-A1 dated 17.07.1992, Annexure-A2 dated 30.11.1992 and Annexure-A3 dated 112.1995 and direct the respondents to reinstate the applicant in service within a period of one month from the date of receipt of a copy of this order. This order shall not preclude the respondents to initiate the disciplinary proceedings against the applicant in accordance with rules. The respondents shall take a decision regarding the back-wages to the applicant upon his representation, as per General Financial Rules applicable for this purpose." 5. The Union of India is in appeal before us against the said impugned order Mr. This order shall not preclude the respondents to initiate the disciplinary proceedings against the applicant in accordance with rules. The respondents shall take a decision regarding the back-wages to the applicant upon his representation, as per General Financial Rules applicable for this purpose." 5. The Union of India is in appeal before us against the said impugned order Mr. Manish Bhandari, learned Counsel appearing on behalf of the Union of India vehemently submitted that in view of the refusal of the show cause notice in prescribed from No. SF5 by the respondents and in view of the clear averments in his statement Annexure-4 dated 13.07.1991 and subsequent statement Annexure-6 coupled with the fact of his voluntary absence for which no reason or information was ever given to the employers during the contemporary period by the respondent, the impugned order of removal from service is upheld by the Appellate Authority as well as the Revisional Authority, are justified and such a person could not have been retained in service. No medical proof of his so called mental illness being under the influence of super natural forces as alleged by him ever came on record and, therefore, this has to be clearly construed as an after though for which there is no justification much less a legal foundation. 6. On the side opposite, Mr. A.N. Gupta learned Counsel for the respondent Abdul Rasheed also urged that since in pursuance of the orders of the Tribunal the appellants have already taken him back in service and have also fixed his superannuation dated as 30.11.1994, this Court should not upset the said position. He further submitted that no show cause notice was ever served upon the respondent Abdul Rasheed and since due to his health problem he could not attend his duties during the said period of six years, he should have been taken back in job and his removal from service is illegal. 7. We have heard the learned Counsel for the parties and perused the record of the case. We are of the opinion, that the present writ petition Union of India, filed by the appellants deserves to be allowed. 7. We have heard the learned Counsel for the parties and perused the record of the case. We are of the opinion, that the present writ petition Union of India, filed by the appellants deserves to be allowed. Not only that the respondent delinquent absented himself from his duties for a good number of years without assigning any reason nor even informing the concerned authorities but suddenly when he came to know about the disciplinary action having been initiated against him he appeared before the concerned authority on 13.07.1991 in which too he expressed his desire not to serve the Railways anymore. The same stand was reiterated even in his subsequent statement Annexure-6. In view of his own admission in these two statements, his retraction from his earlier statement dated 13.07.1991 vide Annexure-5 dated 06.08.1991 appears to be an after thought, Thus, there was substantial compliance with the principles of natural justice and the show cause notice, charge-sheet etc. in form No. SF5 should be deemed to have been served upon him. 8. In the face of concurrent finding of three departmental authorities against him clearly finding him guilty of his prolonged absence from duty for a period of over six years, we find no justification in the impugned order of Tribunal allowing his original application and directing the petitioners to re-instate him in service on a mere technical plea of non-service of memorandum of charge-sheet etc. which too cannot be accepted as such, in view of his own admission in his aforesaid two statements. 9. Accordingly, we allow this appeal and set aside the order of Tribunal dated 25.07.2000 and uphold the impugned orders (Annexure-A1) dated 17.07.1992, Annexure-A2 dated 30.11.1992 and Annexure-A3 dated 112.1995. 10. No order as to costs.